Administrative Law: Errors of Law, Errors of Fact

Table of Contents

Craig, Administrative Law, Chs. 16, 17 & 24 2

ERROR OF LAW 2

Theories of jurisdiction 2

Case law history 3

Current Caselaw 4

Policy Considerations 5

Error of fact 6

Remedies: invalidity 8

Errors of Law (‘Jurisdiction’) 8

*Anisminic v Foreign Compensation Commission [1969] 2 AC 147, HL 8

Pearlman v Keepers and Governors of Harrow School [1979] QB 56 9

O'Reilly v. Mackman [1983] 2 AC 237 (HL), at 275c-276f 9

*R v Lord Chancellor ex parte Page [1993] AC 682 10

*R v Monopolies & Mergers Commission, ex p. South Yorks Transport [1993] 1 All ER 289, HL 12

*Secretary of State for the Home Department v Rehman [2003] 1 AC 153 (NB does majority accept [50] & [54]?) (NOFL) 12

**R (Cart) v The Upper Tribunal [2011] UKSC 28, [2012] 1 AC 663 (NB Supreme Court) 12

*Jones v First Tier Tribunal [2013] UKSC 19, [2013] 2 AC 48 (NB Supreme Court) 13

*T.R.S. Allan, “Doctrine and Theory: An Elusive Quest for the Limits of Jurisdiction” [2003] Public Law 429 (NOFL) 14

The Consequence of an Error of Law - Void, Null, Voidable, Invalid? 14

C. Forsyth, 2007 Cambridge LJ 14

*D Feldman, ‘Error of Law and Flawed Administrative Acts’ (2014) 73 Cambridge LJ 275 (NOFL) 15

*Compare R v Govr of Brockhill Prison, ex p. Evans (No 2) [2001] 2 AC 19 & (NOFL) 15

*R (WL (Congo)) [2012] 1 AC 245, SC (NOFL) 16

Review of Findings of Fact (NB Craig, ch 15) 16

R. v. Hillingdon L.B.C. ex parte Puhlhofer [1986] 1 AC 484 (HL), at p.517 16

R v Secretary of State for the Home Department, ex p. Khawaja [1984] AC 74, HL 16

R. v. CICB, ex parte A [1999] 2 AC 330, Lord Slynn’s judgment 17

*Alconbury [2001] 2 All ER 929, HL 17

**E v Secretary of State for the Home Department [2004] QB 1044, especially paragraphs [44] - [67] 18

Connolly v Secretary of State for Communities and Local Govt [2009] EWCA Civ 1059, paras 1-40 18

R (CJ) v Cardiff CC [2011] EWCA Civ 1590 18

*Bubb v L B of Wandsworth [2011] EWCA Civ 1285 19

The Fact / Law Distinction (cases above … and…) 19

*Edwards v. Bairstow [1956] AC 14 HL 19

*Moyna v. Secretary of State for Work & Pensions [2003] 4 All ER 162, HL 20

*T. Endicott, “Questions of Law” (1998) 114 LQR 292 20

R. Williams, “When is an Error not an Error? Reform of Jurisdictional Review …” (2007) Public Law 793 21

Craig, Administrative Law, Chs. 16, 17 & 24

ERROR OF LAW

Theories of jurisdiction

• Traditional theories draw distinction between jurisdictional errors (those relating to the kind/type/scope of case into which a public body could enquire) and non-jurisdictional ones (those relating to truth/detail of the findings it made) – only jurisdictional errors are subject to review because reviewing errors made internally within the body’s assigned are would blur the distinction between review of legality and appeal

  • However courts haven’t always drawn distinction rationally; sometimes it’s influenced by whether the court wanted to intervene. Nevertheless most judges thought a divide could be drawn on analytical terms

• Most recent theories don’t draw the distinction – intervention is based on error of law (distinction between law and fact) and cause controversy as courts may not be better at resolving issues of law than the public bodies they’re reviewing

Collateral Fact Doctrine (Lord Diplock, Anisminic – authoritative until 1960s)

• Thesis: There are preliminary questions that public bodies must answer before they can proceed on the merits, and these relate to whether the body was properly constituted, and whether the case was of a kind referred to in the statute (questions can involve fact, law or discretion). Public body makes an initial determination, but if the court finds on review that the situation in the statute didn’t exist then the public body’s finding is null.

• Difficulty: normally, statutes would say if X1, X2 and X3, then public body shall/may do Y. But if the X factors were deemed always to be jurisdictional, then the line between appeal and review would disappear and public body would only have the power to do whatever accorded with the opinion of the court

  • Diplock’s resolution: if misconstruction of the statute relates to kind of case, then it is jurisdictional, but if it relates to situation then it is internal (but this line is impossible to draw – there is no predictability as to how a case will be categorized before the court categorizes it, and no ex post facto justification for why cases are so categorized)

Limited Review (Gordon)

• Thesis: if a public body is given jurisdiction over a certain topic then the question is whether the facts relating to the topic exist in the opinion of the public body (eg. if the topic is assault, then as long as the public body asked the right question (was there assault in the opinion of the public body?) then it will bind, even if it made the wrong answer).

• Difficulty: distinction between scope and truth is misconceived – it is fallacious to say that asking the wrong questions is always a question of jurisdiction; the subject matter of inquiry might involve decisions on a number of issues, and yet since each isn’t a subject matter by itself any error is only within jurisdiction. The fallacy is most evident when considering f(a,b,c,d…)=furnished tenancy – Gordon would only inquire into whether the right term, “furnished tenancy”, has been used, and doesn’t allow the court to peer into the meanings in the bracket (terms certain, intent, amount of fixture and fittings…) as these are termed non-jurisdictional. And yet the term is only a short hand for what is in the bracket – such a distinction makes little sense. As such, it would allow terms to become ‘empty vessels’ into which anything can be poured.

Extensive Review - Academic (Gould)

• Thesis: The preliminary question of whether a public body was empowered to answer the relevant issue is decided on the opinion of the court, because it exists independently/as a precursor to the exercise of jurisdiction. The...

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